This is the legislation at the heart of McGirt v Oklahoma. It is one of a handful of laws that allow the national government the power to prosecute people for criminal activities despite the fact that the Constitution does not give Congress the enumerated power to do so. This function is reserved to the states, in what are called the police powers.
This is one of the basic tensions that exist in our federal system. As you read your textbook, be attuned to it.
- Major Crimes Act
. . . a law passed by the United States Congress in 1885 as the final section of the Indian Appropriations Act of that year. The law places certain crimes under federal jurisdiction if they are committed by a Native American in Native territory.
This list of crimes has since been updated to the following:
Murder
Manslaughter
Kidnapping
Maiming
A felony under chapter 109A (i.e. sexual abuse)
Incest
A felony assault under section 113 (e.g. assault with intent to commit murder or assault with a dangerous weapon)
An assault against an individual who has not attained the age of 16 years
Felony child abuse or neglect,
Arson
Burglary
Robbery, and
A felony under section 661 of this title (i. e. larceny)
Note that none of these are enumerated in the Constitution, which raises the question about the laws Constitutionality. The Supreme Court considered this question in the following case, but found the law to not be in violation of the Constitution.
- United States v. Kagama.
. . . Kagama, a Yurok Native American (Indian) accused of murder, was selected as a test case by the Department of Justice to test the constitutionality of the Act.
The importance of the ruling in this case was that it tested the constitutionality of the Act and confirmed Congress' authority over Indian affairs. Plenary power over Indian tribes, supposedly granted to the U.S. Congress by the Commerce Clause of the Constitution, was not deemed necessary to support the Supreme Court in this decision; instead, the Court found the power in the tribes' status as dependent domestic nations. This allowed Congress to pass the Dawes Act the following year. The case has been criticized by legal scholars as drawing on powers that are not granted to Congress by the Constitution. It remains good law, despite that criticism.
